Home -> Law Blog Directory -> Criminal Law Blogs -> Fourth Amendment

Criminal Law

: Fourth Amendment

MA: Affidavit for SW for child porn on defendant's computer failed to show probable cause; presence of adult porn has no bearing on presence of child porn

By John Wesley Hall, Jr.

Affidavit for search warrant for child porn on defendant's computer failed to show probable cause. Also, presence of adult porn on the computer says nothing about the presence of child porn, and the court refuses to make this inference at the request of the state. Commonwealth v. Kaupp, 2009 Mass. LEXIS 14 (January 16, 2009): After reviewing Officer Maglio's affidavit, we conclude that the affidavit, read as a whole and in a nontechnical manner, does not establish probable cause to believe that child pornography was located among the defendant's private files. The portions of the affidavit suggesting that the defendant's private files contained child pornography consisted of (1) the fact that both Joester and Sinister had a copy of the recently released movie Spiderman, suggesting that the movie had passed from one computer to another; (2) the fact that child pornography had been observed in Joester's open share; and (3) Officer Maglio's statement that the defendant "could not guarantee that there were not any child pornographic images stored in electronic format within his computer...continue to full post

Full post as published by Fourth Amendment on January 23, 2009 (boomark / email).